Today, the Tenth Circuit heard argument concerning the justiciability of the Guarantee Clause in Kerr v. Hickenlooper before a panel (PDF) with Judges Briscoe, Seymour, and Lucero. A district court last year accepted the argument that the Guarantee Clause was at least potentially justiciable.

In 1992, Colorado voters, by initiative, enacted a "Taxpayer Bill of Rights" (TABOR) that prohibits the legislature from raising tax rates or imposing new taxes without voter approval. Plaintiffs recently sued and claimed that the legislature had a kind of inherent right as a republican form of government to control tax increases.

The argument is intriguing. The Guarantee Clause in Article IV of the Constitution requires, "The United States shall guarantee to every State in this Union a Republican Form of Government . . . ." It has never been found justiciable--that is, capable of judicial resolution. In Luther v. Borden, the Supreme Court rejected an opportunity to resolve a dispute as to the proper form of government in Rhode Island under the Guarantee Clause, and that precedent has dramatically limited the universe of possible situations when a judiciary might inject itself into a dispute.

There are several options at the panel's disposal to resolve the case, including a standing issue. But I thought I would examine three points regarding the Guarantee Clause claim in particular.

I. Defining Justiciability

The Supreme Court in Baker v. Carr offered six factors for considering whether the judiciary could resolve a dispute, or whether it was best left to other political branches. The first point, a "textually demonstrable constitutional commitment of the issue to a coordinate political department," is not as on-point here as it was in Nixon v. United States, when the Court declined to review the impeachment of a federal judge on the basis that the task was "sole[ly]" committed to the House of Representatives.

The second prong, however, is salient: "a lack of judicially discoverable and manageable standards for resolving it." Defining a "Republican Form of Government" is not an easy task, and certainly not one the judiciary has undertaken in over 200 years.

Further, the narrowness of the question weighs against examining the definition. The defendants who appealed note in their briefs that there are limited sitations in which it might be justiciable--such as if a state instituted a tyranny or a monarchy. But here, the question is whether the legislature has a right to raise taxes absent the popular vote of the people-and, perhaps as a prior question, whether the people can remove a delegated task of certain kinds of taxation from their representatives by initiative and restore it to themselves.

The district court decided that it was too early to decide and denied the motion to dismiss. It explained, the inquiry "reflects the fact that the discussion is premature at this stage of the litigation. Resolving the issue of whether there are judicially discoverable and manageable standards for determining the merits of Plaintiffs’ Guarantee Clause claim would necessarily require this Court to begin to wade into the merits of this dispute."

To be frank, the court is wrong. Deciding whether there are standards for adjudicating a Guarantee Clause claim is fundamentally different from deciding whether those standards were met such that the plaintiffs win. Admittedly, beginning to answer the question of what the law is will very quickly get to the merits issue. But there is no "discovery" that will "reveal" what the Guarantee Clause requires--it is not the kind of thing that should survive a motion to dismiss for further investigation.

I confess that I do not find an amicus curiae brief (PDF) by several law professors much more persuasive. The brief explains:

The briefs submitted by the State and their amici, for example, present arguments about how to interpret the language of the Guarantee Clause. The Response brief provides a set of counterarguments on the same question. Both sides support their arguments with historical evidence and judicial precedent. These arguments are precisely the type that courts regularly consider in interpreting the Constitution.

That, flatly, cannot be the test. The parties in Nixon disputed whether a court could interpret the word "try," and the parties, of course, each had their own set of arguments about what it means to "try" a party for purposes of impeachment. The Court--while recognizing that the task was left "sole[ly]" to the House--refused to entertain a question of the definition and usurp the role of Congress, and this question of judicially-manageable standards "strengthen[ed] the conclusion" that the matter was left to another branch other than the judiciary.

II. A Guarantee Against Whom?

The parties, several members of the legislature, sued the governor for enforcement of the Guarantee Clause. But the defendants raise an intriguing matter: against whom may the Guarantee Clause be enforced? The defendants note that "The United States" is the one that guarantees a republican form of government. Any enforcement, therefore, must come against the United States, and not against the executive or some other state officer.

It's a point I haven't encountered (and perhaps there is robust discussion of it somewhere), but it is one worth considering.

III. Narrow Guarantees and Broad Guarantees

Circling back to an issue raised in the first point, the breadth or narrowness of the issue matters greatly if it concludes that the Guarantee Clause is justiciable (or when deciding that this specific matter is not justiciable as alleged).

A narrow ruling would address solely the issue in this case--specifically, whether the people could vote by initiative to remove the power to increase taxes from the legislature absent a popular vote. It is not, strictly speaking, that the legislature cannot raise taxes: it is that they cannot do so without popular approval. And it is not that the legislature has lost the power to do so: it lost the power because of a citizen initiative. Narrowly, this issue does not strike me as the kind of "core" definition of "Republican Form of Government," given the fact that the people enacted it by initiative and that the power still exists in a different form.

A broad ruling, however, may call into question the entire initiative regime as it exists in the United States. Initiatives that affect some "core" legislative power--here, tax; elsewhere, the question remains open--may be subject to judicial review. The specific approach that the court chooses to employ matters greatly.

There is much to heed in this case, and the Tenth Circuit panel has much to consider. It has already proved a fascinating saga.